FEVIG V. FEVIG, 1977-NMSC-005, 90 N.M.
51, 559 P.2d 839 (S. Ct. 1977)
Valerie A. FEVIG, as guardian of the
persons and Estates of
Mary Louise Fevig and Donna Jean Fevig, minors,
Petitioner-Appellant,
vs.
Valerie Marjorie FEVIG and Walter W. Fevig,
Respondents-Appellees.
SUPREME COURT OF NEW MEXICO
1977-NMSC-005, 90 N.M. 51, 559 P.2d 839
Toulouse, Krehbiel & DeLayo, P.A.,
Leonard J. DeLayo, Jr., Albuquerque, for appellant.
R. Hugo C. Cotter, Albuquerque, for Valerie
M. Fevig.
William P. Runnels, Albuquerque, for
Walter W. Fevig.
SOSA, J., wrote the opinion. EASLEY and
PAYNE, JJ., concur.
{1} Petitioner-appellant
Valerie A. Fevig, as guardian of the persons and estates of her minor sisters
Mary Louise and Donna Jean Fevig, sought a decree from the trial court ordering
their parents, Valrie M. Fevig and Walter Fevig, respondents-appellees, to
contribute to the support and maintenance of the two minor children. The trial
court found for the respondents. Petitioner appeals.
{2} On April 17, 1970, the
respondents were divorced. Valrie M. Fevig was awarded custody of Mary and
Donna, but on October 23, 1970, custody of them was awarded to Walter Fevig.
The children stayed with their father until late April or early May, 1975, when
they moved out of their father's home and moved in with their older sister
Valerie. On June 11, 1975, Valerie was appointed guardian of the persons and
estates of Mary and Donna. Valerie filed for welfare assistance to enable her
to support her two sisters, and she received $129 per month. On January 9,
1976, Valerie filed suit against respondents, alleging both had neglected to
provide for their minor children, and requested an order of the court to compel
contribution to their support.
{3} The trial court held that
(1) the minor children voluntarily left their home and thus relieved their
parents from their support obligation, (2) the children were emancipated, and
(3) the petitioner stood in loco parentis to the children. Thus the trial court
concluded neither respondent owed a duty to support the two minor children.
{4} Appellant first argues
that the children are not emancipated based upon the facts presented. Appellees
argue that since Mary and Donna left voluntarily and independently, they had
emancipated themselves. The facts are mostly undisputed. Mary and Donna did not
get along with their stepmother (Walter remarried). One day they had an
argument with their father about keeping their room clean. Their father told
them that if they could not keep their room clean, they could go to their
mother. Mary Fevig testified to the exchange as follows:
... and my father said, "Well, if you love your mother
so much, why don't you go back with her?" And his wife said, "Why
don't you pack up your bags right now," so we left.
Mary and Donna left with some of their clothes, but they went
to their sister's home instead.
{5} Parents have a duty to
support their children until they reach the age of majority or are otherwise
emancipated.
Mason v. Mason,
84 N.M. 720,
507 P.2d 781 (1973). In the
case before us, neither child has reached the age of majority. Thus, in order
to sever the parental duty of support, the children had to be emancipated. By voluntarily
leaving their father's home after an argument, did Donna and Mary emancipate
themselves? We think not.
{6} The power to emancipate a
minor resides in that parent or those parents having the duty to support the
child.
Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965). An
express emancipation of a minor takes place when the parent freely and
voluntarily agrees with his child, who is able to care and provide for himself,
that he may leave home, earn his own living, and do as he pleases with his
earnings.
Rounds Bros. v. McDaniel, 133 Ky. 669, 118 S.W. 956 (1909);
cf.
Gillikin v. Burbage, supra;
Merithew v. Ellis, 116 Me. 468,
102 A. 301 (1917), 2 A.L.R. 1429 (1919). There is no evidence that Mary and
Donna agreed that their parents were to be relieved of the responsibility of
supporting them. Although she agreed to become their guardian, Valerie never
agreed to furnish all the monetary support for her younger sisters. Walter
Fevig, who earns approximately $1000 per month, testified at trial that he
expected to furnish some support, and Valrie Fevig, who earns approximately
$700 per month, stated she would be willing to furnish support for her
daughters. Neither Donna nor Mary was able to care and provide for
{*53} herself, and neither one earned her own
living. Thus, there is no express emancipation in this case. Emancipation of a
minor may be partial and implied, however. See
Parker v. Parker, 230
S.C. 28, 94 S.E.2d 12 (1956), 60 A.L.R.2d 1280 (1958). In
Fitzgerald v.
Valdez,
77 N.M. 769, 776,
427 P.2d 655, 659, (1967), we stated: "Once
the family relationship is altered so that the child is no longer subject to
parental care and discipline, the child is said to be emancipated. Emancipation
as between parent and child is the severance of the parental relationship so
far as legal rights and liabilities are concerned (citations omitted)." In
that case the son had been emancipated as a matter of law upon reaching the age
of majority (the fact that he lived with and was supported by his parents did not
change his status of being emancipated). In the case before us the legal duty
of the parents to support their minor children has not been severed because
Mary and Donna are unable to support themselves. The parental right of
discipline and care was severed and transferred to their guardian (Valerie),
but Valerie did not agree to be the sole supporter of Mary and Donna. We hold
there was a partial emancipation of Mary and Donna with respect to their
parents' right to discipline and care for them. However, the parents' duty of
support has not been extinguished.
{7} Appellant argues that the
trial court's conclusion that the appellee stood in loco parentis to her
younger sisters, and thus the respondents had no duty to support Donna and
Mary, was error. We agree. A person is said to stand in loco parentis when he
puts himself in the situation of a lawful parent by assuming the obligations
incident to the parental relationship without going through the formalities
necessary to a legal adoption.
Commonwealth v. Smith, 429 Pa. 561, 241
A.2d 531 (1968). However, the person must intend to assume toward the child the
status of a parent.
State v. Superior Court for King County, 37 Wash.2d
926, 226 P.2d 882 (1951);
Kransky v. Glen Alden Coal Co., 354 Pa. 425,
47 A.2d 645 (1946). The trial testimony shows that appellant did not intend to
support her minor sisters, indeed she could not support her minor sisters
without outside help, and that she expected her parents to contribute to the
financial support of Donna and Mary.
{8} The trial court is
reversed with directions to determine reasonable support for Donna and Mary to
be assessed against respondents-appellees.
EASLEY and PAYNE, JJ., concur.